Siobhian Brown has denied that legal aid in Scotland is in crisis and called on the country's lawyers and their representative bodies to get “round the table” with her to talk about the future.

The Minister for Victims and Community Safety said the Scottish Government could not “magic up solicitors” and that there needed to be “some sort of underlying reform from within the profession".

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Over the last three days, as part of our series examining legal aid, we have highlighted the financial difficulties faced by solicitors working in criminal and civil law and the impact this is having on access to justice for some of the country's most vulnerable. 

One big concern from the sector is the number of practitioners walking away from legal aid work.

Law Society of Scotland analysis of Scottish Legal Aid Board (SLAB) data, shows there are currently 911 solicitors registered for legal aid, down from 1,084 in 2020, a 16% drop.

However, those figures mask a much bigger problem.

According to the Scottish Solicitors Bar Association (SSBA), of those, only 484 made a claim for a summary legal aid certificate, needed to conduct a trial.

Demographic data also suggests that many of those doing the work, are older, with around a third set to hit retirement age in the next decade.

Asked if she accepted that legal aid was in crisis, the minister said: "I accept that there is much-needed reform.”

However, she said the official figures suggested there had been little change in the number of solicitors actually carrying out legal aid work rather than just those registered for legal aid.

“Back in 2020 there were 813 criminal defence lawyers, today, in 2024 we've got 790, so I wouldn't say crisis as such, but I recognise totally this concern within the profession about where we are, where they're going in the future,” she said.

Earlier this year, the Scottish Solicitors Bar Association (SSBA) and Law Society of Scotland withdrew from the Scottish Government’s Legal Aid Remuneration Project and Research Analysis Group.

It was set up in 2022 to seek a long-term solution to the way legal aid is funded in Scotland.

However, the two groups said they had lost confidence in the body.

Ms Brown said it was difficult to talk about the future of legal aid without their involvement on the project.

She told The Herald: "I know there's a narrative that nothing's been done in increasing money towards the legal profession, but since 2019 there have been four uplifts.

“So there's been £31 million given, £11m of which was last year alone, to the legal profession, which was an increase of 25% over that period, which is a large increase.

"There has been money given by the Scottish Government for legal aid.

"But even though that money is being given, it's not getting the results that the profession wants."

This she said, is why there needed to be a "deep dive" into legal aid.

(Image: Gordon Terris/NQ) She added: "The £11m last year was on the condition that the Law Society of Scotland and the Scottish Solicitors Bar Association would be round the table.”

"Since then they've walked from the project,” Ms Brown added, “Which was disappointing, and I really encourage them to get back round the table, because if we want reform moving forward, we all need to be working at it.

“I can't do it on my own. The Scottish Government can't do it. And I need them back around the table to discuss how we move forward."

The minister added: "I have reached out to Law Society and the SBBA. 

“I said, 'My door is always open. We're not in a position at the moment to give you the double-digit number that you got last year, again this year.

“‘So if you have anything that you want to come forward regarding fees, my door's open, I'm willing to listen. I'm willing to take it to the Finance Secretary.'

"But they need to be around the table talking to me to do that.”

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Ms Brown was also asked about the difficulty some people had in finding a solicitor.

On Wednesday, The Herald shared the story of Jackie, a woman who has not seen her son for five years, with the boy’s father refusing to obey a court order.

Despite being eligible for legal aid, she has struggled to find representation, with more than 30 lawyers unable to take her on.

Asked about the case, Ms Brown said: “I don't want to see anybody in that harrowing position of not being able to see their children and not being able to get the support that they need.

“And this is why, and I'm sorry I just keep getting back to it, but this is why we really need a reformed justice system that works for the legal profession but also for people that are seeking justice when in the most vulnerable times.

“It was not nice to read that story, but I acknowledge that is happening, but this is where it is vital that we come together to see how we can improve things.”

Ms Brown said the government had introduced interim payments in exceptional circumstances for solicitors where the cases are more complex.

“They can apply to the Scottish Legal Aid Board for more money for those cases.

"We are doing what we can to make it more attractive. Obviously, we can't tell people or solicitors that they have to do it. But I think again, this is where we get around the table [and they] tell me how we can improve things.

“I know there's not going to be primary legislation in this parliamentary term, but there's still things that I want to do within the next 18 months. I need people around the table talking to me.”

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Responding to Ms Brown's comments, Ian Moir, Co-convener of the Law Society of Scotland Legal Aid Committee said: "While there have been increases to legal aid fees in recent years, they do not address the long-standing deterioration in the legal aid system overall and we believe the Scottish Government must urgently address the issue.

“We only have to look at the most recent annual report from the Scottish Legal Aid Board which clearly shows that funding for legal aid continues to fall behind inflation and the number of case applications has dropped.

"The report shows a 1% drop in the number of cases paid for by SLAB since 2023, but that number has fallen 29% from the 191,256 cases paid in 2016-17.

"While the total cost of legal assistance increased by 12% from last year to £151.2 million, that represents an increase of just 11% on the £135.7 million paid in 2016-17. In real terms, £25 million less is being spent now than in 2016-17.

"The number of firms which submitted legal aid applications is down from 621 firms the previous year to 596 in 2023-24.

“These figures indicate something is seriously wrong with our legal aid system and ad hoc funding injections are just not enough to put the sector on a long-term sustainable footing.

"For example, the 10.25% increase in 2022 has been completely negated by inflation and we are now in exactly the same situation as we were two years ago.

"At that point Scottish Government recognised the problem and chose to act. We urge them to do so again to resolve this ongoing crisis.”

On the decision to walk away from the Scottish Government’s Legal Aid Remuneration Project and Research Analysis Group, Mr Moir said: "We had long pressed for a review mechanism to stop the ad hoc approach to funding this critical sector and did not withdraw our participation from this project lightly.

"We would willingly get involved in further discussions on reform but need assurances of a proper review system and, crucially, the funding that is desperately needed.

“Our concern is for those who rely most on criminal, civil and children’s legal aid. With fewer solicitors undertaking legal aid work because they can’t make it viable, it is the most disadvantaged and vulnerable in our society who are most at risk of losing their access to justice.”

Simon Brown, the President of the Scottish Solicitor Bar Association accepted that there had been four uplifts since but pointed out that £10m was for Covid.

He also said it was “against the background of having been nothing for the 20 years before that.”

“If you look at the bigger picture, the £500 fixed fee [for a summary case] which came in in 1999 has only risen to £572.

“So it is a fudge to see there's been money given. It's a drop in the ocean."

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In terms of the remuneration project, Mr Brown said it was “the Scottish Government's failures that brought the talks to an end".

He added: “They wanted to get an analysis of the criminal defence profession. So they wanted to bring in an outside agency to do interviews into cost benefits and the like which we were in agreement with.

“They tried and failed twice to get anyone to accept the tender. And then we left the talks when they said, ‘we're going to try for a third time’".

He said the government were just “kicking the can down the road".

“Nothing's happening here, and they're just trying to do the same thing that's already failed twice.

“So that was why we left the talks, because they weren't getting anywhere, and it was the Scottish Government's failure.”

Mr Brown also said he had contacted the minister on October 2 about the remuneration project but that he had not yet had a response.

“The profession realise that reform is required, but unless and until the government accept that the issue has been caused by decades of underfunding and that any reform will require a substantial investment, then there seems to be little hope,” he added.